' This second appeal is directed against the impugned order, dated 3-1-1981 passed by the learned Vlth Additional District Judge, Karachi whereby he has allowed the appeal and set aside order of ejectment passed by the learned Rent Controller whereby the defence of the tenant was struck off on account of non-compliance of Tentative Rent Order.
2. Briefly stated the relevant facts of the case are that appellant before me is landlord and he filed an application for ejectment against respondent/tenant. During the proceedings Tentative Rent Order was passed on 11-3-1978 in which a direction was given for deposit of arrears to the tune of Rs.420 before 31-3-1978 minus amount of rent already deposited in the miscellaneous rent case and Rs.15 P.M. as current rent which was to be deposited before 15th of each succeeding month.
Application for striking off defence was filed by the landlord on 23-5-1978. Notice of this application was ordered to be issued and report of Nazir was called for. Tenant filed his objections and after hearing both the parties the learned Rent Controller struck off defence on the basis of report of Nazir that Rs.45 were deposited on 8-8-1978. It may be mentioned here that rent was being deposited at the rate of Rs.15 P.M.
3. Against order of Rent Controller appeal was filed by the tenant which was heard and even written arguments were filed on behalf of the tenant. After hearing both the parties the learned Additional District Judge allowed the appeal and set aside the order passed by the Rent Controller which is impugned in the second appeal.
4. Mr. Syed Ali Ahmad Tariq, Advocate for the respondent has contended before me that the default in question was not deliberate but on account of a bona fide mistake which was result of confusion. According to him the order passed by the learned Rent Controller was illegal and improper for the reason that the Nazir had submitted before him the amount in rent Case No.5031/1976 while on the other hand the tenant right from the beginning had been depositing rent in Misc. Rent Case No.901/76 in which he had deposited arrears as well as future monthly rent. It was further submitted by the learned counsel that in the objections filed by the tenant before the learned Rent Controller the fact was mentioned that the tenant was depositing rent in Miscellaneous Rent Case No.901/76 but the learned Rent Controller did not call for record in that case. I have seen the record and it is correct that in the objections filed by the opponent, dated 20- 9-1978 this fact was mentioned that tenant has been depositing rent in Misc. Rent Case No.901/76 and after rent order was passed he had started depositing rent within time in Rent Case No.5031/76. Plea was taken in the objections that nothing was due and there was no non- compliance of Tentative Rent Order. Request was made in the objections that record of Miscellaneous Rent Case No. 901/1976 be sent for. When the final order of ejectment was passed by the Court of the Rent Controller, dated 18-12-1978, it appears from the diary of that date that both parties and their counsel were present and in their presence a short order was passed. No objection was raised that record of Rent Case No.901/76 was not sent for. Anyway in appeal before the learned Additional District Judge this ground was taken up and the learned Additional District Judge sent for the report of Nazir in Rent Case No.901/76. In fact the record of the Court of learned Additional District Judge shows that report of Nazir was called in both the rent cases No.901/76 and also 5031/76. It appears from the report of the Nazir that in Miscellaneous Rent Case No.901/76 that tenant started depositing rent from 1-3-1976. Entries show deposit of various amounts and total payment deposited in Rent Case No.901/76 comes to Rs.
480. The last deposit was made in that case on 25-5-1978. Report of Nazir further shows that in Rent Case No.5031/76 the tenant had started making deposits from 8-8-1978 and onwards.
5. Mr. Ali Ahmad Tariq, Advocate has argued before me that there was no non-compliance of Tentative Rent Order because there was a genuine bona fide mistake in the calculation. He has referred me to entry in the report of Nazir in the record of learned Additional District Judge which relates to receipt No. 1344, dated 6-7-1977 showing payment of Rs.45 made by the tenant.
According to Mr. Ali Ahmad Tariq the tenant had in fact deposited Rs.75 and it was mistake on the part of cashier who has made the entry showing that only Rs.45 were deposited. The learned counsel produced before me receipt and strenuously argued that in the receipt amount is shown Rs.75 and not as Rs.45. He drew my attention to figure 4 which according to him was figure 7. He also produced other receipt to show how the Cashier wrote 4 and 7. According to Mr. Ali Ahmad Tariq; Advocate that if his argument was accepted that on 6-7-1977 against receipt No.1344, Rs.75 were deposited then further calculation would show that no default was committed.
6. Mr. Mustafa Lakhani, Advocate for the appellant readily agreed to this proposition and requested for examination of Nazir of the Court of Rent Controller. In the circumstances Nazir was called for alongwith relevant record and counter-foil receipt of the receipt mentioned above. I have examined the Cashier who has issued the receipt in dispute. The receipt in dispute is Exh.1/A. After seeing the receipt the Cashier stated that the figure mentioned therein is Rs.45 and not Rs.
75. Later he checked the counter-foil of Receipt No.1344 and made a statement that in the counter- foil also the amount mentioned is Rs.45. He checked up the ledger and stated that amount mentioned against receipt No. 1344 is Rs.
45. He checked the 'C' Register and made the same statement.
7. Mr. Mustafa Lakhani, Advocate has stated before me that the Tentative Rent Order clearly shows that direction was given for deposit of arrears of rent to the tune of Rs.450 covering the period from 1-10-1975 to January, 1978 on or before 31st March, 1978 minus rent already deposited in Misc. Rent Case No.901/76, which has been mistakenly shown in the Tentative Rent Order as Rent Case No.5031/76. There is further direction in Tentative Rent Order for deposit of monthly rent at the rate of Rs.15 p.m. before 15th of each succeeding month. Mr. Mustafa Lakhani has further pointed out that in the report of Nazir produced before the learned Additional District Judge entries in Rent Case No. 901/76 show that the tenant had started making deposit from 1-3-1976 and the last deposit was made on 25-5-1978 total of which comes to Rs.480. He has drawn my attention to the entry, dated 19-2-1978 against Receipt No.40657 whereby Rs.30 were deposited. With this entry included, according to the learned counsel the amount so far deposited comes to Rs.435 which included Rs.420 the amount of arrears mentioned in the Tentative Rent Order and Rs.15 as rent for the month of February, 1978. Next entry is dated 25-5-1978 against Receipt No.58079 for amount of Rs.45. According to Mr. Mustafa Lakhani amount of Rs.45 appears to be payment of rent for the months of March, April and May. Rent for the month of March became due on 15th April and rent for the month of April became due on 15th May when the entry in question shows that Rs.45 were deposited on 25-5-1978 which clearly indicates that for the months of March and April deposit was made beyond the time stipulated in the Tentative Rent Order.
8. Against this argument Mr. Ali Ahmad Tariq, Advocate raised the same contention that the whole confusion had arisen because of receipt issued on 6-7-1977 whereby Rs.75 were deposited. He has not been able to substantiate payment of Rs.75 and I have discussed in detail above that Cashier who had issued receipt stated frankly that it was Rs.45 and he had checked up counter-foil and other entries in the Register which all indicated that only Rs.45 were deposited. The argument of Mr. Ali Ahmad Tariq, Advocate, therefore, has no substance. Moreover it also appears to be an afterthought because this argument as such was not raised before the Rent Controller and I wonder why when the order striking off defence was passed by the learned Rent Controller and both parties and their counsel were present but no objection was raised that record in Rent Case No.901/76 was not called for. This objection was raised before the learned Additional District Judge and he called for the report of Nazir in both the rent cases and was satisfied that tenant had deposited rent in Misc. Rent Case No.901/76 hence no default was committed. In fact even after the rent deposited by tenant in that case is considered in detail and calculation is made as pointed out by Mr. Mustafa Lakhani as stated above, it becomes very clear that rent for March and April was deposited belatedly beyond the time stipulated in the Tentative Rent Order.
9. Mr. Ali Ahmad Tariq still contends that this is technical default but I do not feel inclined to agree with him because this default has arisen in connection with compliance of Tentative Rent Order provisions of which are mandatory in nature and it is the duty of the tenant to see that there is absolutely no non-compliance with the Tentative Rent Order. Argument raised by Mr. All Ahmad Tariq is an afterthought and his claim is not substantiated by the record.
' In the circumstances for the facts and reasons stated above, I set aside the impugned order passed by the learned Additional District Judge and restore the order passed by the learned Rent Controller. Appeal is allowed with no order as to costs. Tenant is directed to hand over possession of the premises within three months from today.
Eviction maintained.